How has Title IX changed and why does it matter?

On Aug. 14, the U.S. Department of Education finalized revisions to Title IX of the Education Amendments of 1972, which governs discrimination on the basis of sex in higher education. In practice, Title IX has led to parity in men’s and women’s athletics, and provides the standards for institutions receiving complaints of sexual harassment, sexual assault, domestic and dating violence and stalking reported by students.

Like all other colleges and universities across the country, Colorado State has been working hard to prepare for these changes before the start of the Fall 2020 semester.

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Read a guest column by Diana Prieto — Vice President for Equity, Equal Opportunity and Title IX at Colorado State University — on how the new division is ready to implement new Title IX requirements on campus. read more

“We had been working under guidance issued by the Obama Administration then altered by the Trump administration,” explained Diana Prieto, CSU’s Vice President for Equity, Equal Opportunity and Title IX. “These new regulations were issued in May 2020 providing greater clarity, and offices across campus have been working together to determine their impact on our existing policies and what we had to change.”

Several policies and procedures have been updated, but Prieto expects they will be refined as the nuances and effects of the final regulations reveal themselves in the coming months.

Changes and effects

The new regulations contain several significant changes from the previous guidance:

  • A narrower definition of what behavior constitutes sexual harassment.
  • A narrower scope of conduct that is actionable under Title IX.

The final regulations continue to define sexual harassment as including sexual assault and quid-pro-quo harassment, as well as other forms of sexual misconduct that create a hostile environment. However, they include only unwelcome conduct determined by a reasonable person to be so severe and pervasive and objectively offensive that it effectively denies a person equal access to an education program or activity.

“That’s a much higher standard to meet,” Prieto said. “If the conduct meets the new definition, we will pursue it under our Title IX policy. If not, it can still be pursued under the Student Conduct Code through the Student Resolution Center. What does and doesn’t meet the new standards can be confusing, so we suggest anyone considering filing a complaint contact the Office of Title IX Programs and Gender Equity.”

  • A formal complaint must be in writing.
  • Voluntary informal resolution options are available to the parties throughout the complaint process.

This is the first time that informal resolution has been specifically permitted by the regulations. The regulations prohibit institutions from requiring any waiver of the right to an investigation of formal complaints of sexual harassment, and prohibit the use of informal resolution to resolve complaints that an employee sexually harassed a student.

  • The parties to complaints may speak about the complaint to others.

“The final regulations specifically prohibit restricting either party to a complaint from speaking about the complaint so confidentially is not the same,” Prieto explained. We encourage everyone to be mindful about the impact of their comments on the investigative process, but we can’t ask them to keep it confidential.”

  • Prescribed grievance procedures that include a live hearing and cross examination.
  • The addition of an advisor to parties for the live hearing.
  • Mandated appeals process.

This is perhaps the most significant change from previous procedures. The final regulations require colleges and universities provide a live hearing for formal Title IX complaints of sexual harassment, and the hearing must allow direct cross-examination by the parties’ advisors, never the party personally. The parties may be physically in separate rooms answering questions via technology that allows decision-makers and parties to see and hear them simultaneously. The final regulations clarify that only those questions deemed relevant by the decision-maker may be asked, and parties cannot seek to include evidence of the complainant’s prior sexual behavior. In determining responsibility, the decision-maker must not rely on any statement made by a party or witness who does not submit to cross-examination at the hearing.

“It’s not easy to come forward, sit across the table and share a difficult experience,” Prieto said. “I worry that this requirement will mean people won’t pursue a complaint. The institution can bring a complaint and initiate an investigation in particular circumstances if we learn of behavior that necessitates an investigation.”

  • Mandated training for Title IX personnel, including the Title IX Coordinator, investigators, decision-makers, and informal resolution professionals.
  • Emphasis on impartiality and prohibition of bias, conflicts of interests and prejudgment.

The decision-maker may not be the Title IX Coordinator or investigator. And, unlike previous guidance, regulations now require that institutions offer both parties an opportunity to appeal the written determination regarding responsibility or the dismissal of a formal complaint.

Prieto’s office is searching for a Title IX Coordinator and developing training materials for parties to a complaint, and the general CSU community, which will be rolled out in online and live sessions in September.

“At CSU, we have always been committed to an equitable, fair and impartial complaint process for students and employees,” Prieto said. “We will continue this culture, and will  devote our resources to help connect students and employees with resources that can help them through a difficult time.”